Mar 20, 2010

English Abstracts of Chinese Entries from 25 Jan to 20 March

Here is the collection of the English abstracts for 21 Chinese entries published at BlawgDog from 25 Jan. 2010 to 20 Mar. 2010. For the English readers' reference.

A book Chapter in LI Zuming (ed.), E-commerce Law, Beijing: University of International Business and Economics Press (2009), 19,000 Chinese words. The excerpt edition of 11,000 Chinese words is provided in this entry at BlawgDog.
The E-commerce should not escape itself from the taxation. However, the troditional tax law and taxation policies would not cope with the new challenges including the identification of the taxpayer, the jurisdiction issues, the "new" objects of taxation, etc. This chapter firstly analyzed the impacts of the online commerce to the traditional tax law. Then it introduced the achievements either in the academia or in the legislations in various countries. China's relevant taxation policies and the future development are discussed in the third section of this chapter. To make this book more practical,  although the structure of the chapter can be divided to the above three parts, the whole chapter always focuses on the possible dilemma as well as the solution in the context of Chinese taxation system.
 
A senior Chinese Wikipedian wrote a post on his blog saying about his suggestion for the amendment of Chinese Copyright Law. The suggestions indicated three aspects of Copyright law: (1) Works made by/for the government; (2) the possibility of waiving the moral rights; (3) term of copyright protection. However, his understanding to the copyright law is not professional enough. I write this essay to illustrate the relevant knowledges and my arguments in these three concerns: (1) it is difficult to judge whether or not a work is of the governmental work. (2) some moral rights can be waived, but some others can not – not because they are “personal rigts” but because the logic essence of them (read more by clicking here); (3) the uncertainty of the death of authors is the major reason of orpan works problem.

Doc Searls searched “the Internet is” in Google and twitter and find some interesting results (at here). I tried to search “The Internet is” in Chinese (互联网是) at Google and Baidu. The result seems more interesting: (1) Google’s 30th effective result appears in page 10 (10 items per page), while Baidu’s appears in page 7. Google is proved again not better than Baidu in Chinese search; (2) The overlap rate of two search engines’ results are very low. (3) the results in Chinese search are very focusing on the political and economic topics, while in the search results of “the Internet is” in English are more virious in cutrual, humanity and literature aspects.

The “two national meetings” held in March is one the most important political matters in each year. This three entries collected the opinions and proposals raised by people’s representatives and members of CPPCC. Here are some examples:
(1) Yanqi (member of CPPCC) suggested to close all net cafes and take them over to the government;
(2) Shen Changfu (a people’s representative) proposed to classify the online expressions, and promulgate a compulsory rule requiring the online game service providers interrupt the services each day for a certain amount of hours.
(3) Xu Long (a people’s representative) proposed to make a gerneral E-commerce Law;
(4) Shen Mingcai (a people’s representative) proposed to establish a national universal platform that provide the links to every government agencies in all levels of the government;
(5) Xia Ji’en (a people’s representative) proposed to promulgate laws encouraging the people starting their own businesses online;
(6) Gao Wanneng (a people’s representative) proposed net cafes stopping service by 24:00;
(7) China National Democratic Construction Association proposed to increase the job vacancies of the Internet industry;
(8) Hou Xinyi (a member of CPPCC) suggested to make all the proposals and suggestions by the representatives public;
(9) People’s representatives suggest the regulation of “Real Name surfing in the background”, which means requiring netizens register the real name before approved to access the Internet, but their real name needs not to be released to the public when they are surfing the Internet;
(10) Li Yizhong, Minister of Industry and Information Technology commented to the resent Google’s news (read here the news at People’s Daily English)

The definition of “the right of performance” in China’s Copyright Law has inherent shortcomings. It uses the term “播送” (communicate) but not “perform” as the predicate of the sentence. The legislators attempted to regulate the mechanical perfomance, but they forgot that the word “performance” itself in the Berne Convention includes the meaning of mechanical performance. The “communication” is another concept in another totally different context. China’s Copyright Law confused the two conducts and this leads the provisions hard to be understood. Eventually, this courses the overlap and obscuration between the right of performance and the right of broadcast, between the right of performance and the right of presentation, as well as between the right of performance and the right of communication to the public through information network.

This article briefly discussed the process of a legal academic writing. It argues that a good author should firstly think like a counsellor who always solve the problem with the most efficient exsiting laws, legal logics and skills. They will exhause, and only exhause the materials related to the problem. Then a further endeavor of the academic author should be compare the pros and cons of different approaches of solving the problem, and find the best solution based on some sorts of values. Lastly, if the above jobs have been done by others, a researcher may try to move from the legal study to the legislative study, with the doctrinal, economic, sociological and even religious approaches – while these may exceed the narrow sence of the legal research.

On 26 February, China amended its Copyright Law: (1) deleted the provision in Article 4(1):
Works the publication and dissemination of which are prohibited by law shall not be protected by this Law.
to:
The copyright owners shall not violate the Constitution and the laws, and shall not prejudice the public interests when they are exporing their copyright. The State administrate the publication and dissemination according to the laws.
(2) Added a new article as Article 26 (registration of mortgage with copyright. This has actually regulated previously in other regulations since 1990s).

A micro-blog acount at People’s Daily’s website (an official news paper) was marked as “verified”. Then it got thousands of followers in a few hours. Then it was proved only a bug of the system – Hu has had a “dialog” with netizens before at the platform of the People’s Daily. Since then an “real name” account was created. When the People’s Daily released its micro-blog service, those “real name” accounts are automatically created a twitter-like page with the mark of “verified”.
This story tell us the so-called “real name” system can hardly garantee the “real” “real name”. Even the President may BE ESTABLISHED a Real Name blog without his consent. What we need to focus on is not the law of real-name access the Internet, but the law of personal data protection, no matter it is associated with a real name or a false one. The law of real-name registration system is based on the presumption of mistrust, and will increase such mistrust among the stakeholders. The law of personal data protection is based on the presumption of trust, and will decrease the misturst eventually.

In this issue edited by Luckie Hong, the following news are included:
(1) SNDA’s literature site developed with the copyright strategy;
(2) Xinmate (a shopping mall) was found copyright infringement in a circumstance it rent the floor to a audio & video shop where the pirated copies of CDs were sold;
(3) dianping.com filed a copyright litigation against aibang.com (a verdict search engine provider);
(4) Littlesheep (a chain resturants company) filed a case against National Trademark Review and Adjudication Board;
(5) Google sent a lawyer’s letter to goojje.com, a website provide integration of the Google and Baidu’s search resutls;
(6) “Loungjing” tea was registered as a collective trademark and only providers in Zhejiang Province can use this mark;
(7) two patent granted to World Wide Stationery Manufacturing Co. Ltd. (a Chinese company) were ruled invalide by a U.S. court (WWS v. U.S. Ring);
(8) Lifetime (a U.S. company) sued three Chinese companies for patent infringement;
(9) a color TV patent pool was established on Feb 2010.

This short essay is about the Li Zhuang case and the form of rule of law. It is strange that the feeling of reading the news of the Li Zhuang case in the Langdell Library at Harvard. As a Chinese lawyer, I can feel not only the text of the news but also the profound tacit knowledge behind the sentences. When I raised my head from those news, looked up the portraits of those legal giant in the history of the U.S., it seems I suddenly traveled back the time and touched the difficulty of the form of rule of law. For most of the old books in the shelves, they are not nessessary to be drawn out because the rule of law had been blent in the blood of the society after the struggles of the lawyers over years. And China is experiencing such courses of blending. 

This is a greeting post for the Lunar New year.

Edited by Luckie Hong, the following news are included:
(1) New progresses of Hengyuanxiang’s trademark case;
(2) In a case between China Audio-Video Copyright Association and a Karaoke bar, a court in Fuzhou (capital city of Fujian Province) ruled that the defendent infringed the “right of public performance”;
(3) A software license includes an arbitration clause; afte the license is due, the licensee still used the software; the licenser file the infringement litigation but the court supported the opposition of jurisdiction based on the arbitration clause;
(4) over 30 companies use Fuji mark at their lift and elevator products but none of them registered the trademark; now they are sued by the trademark holder;
(5) Based on the new evidence submitted to the court of the second instance, the Chinese GEORGE company wins the “GEORGE and figure” trademark dispute against Walmart in Beijing Higher People’s Court;
(6) A Yunnan company filed a Trademark Cancellation Application to the “coffee mate” owned by Nestle;
(7) An officer in SIPO said the first compulsory license may issued to the medicines relevant to the public health;
(8) Haier wins a patent (ZL200820065744.1) litigation against its employee;
(9) Beijing's amended intellectual property law holds dangers (WSJ Article).

XU Wei, co-author of Blawgdog posted this article. He argues that the newly promulgated Tort Liability Law wrongfully confused the different criteria of liability.

China Audio-Video Copyright Association (CAVCA) annouced that the cost of its collective management is 50% of the income of the royalties. This essay compared the ASCAP (11.5%), the GEMA (13.92%) and even the Music Copyright Society of China (16.72%). The reason of such a high cost is: CAVCA is running the collective management as a profitable business. So it established a network of commercial companies around China. Such investment violated the Regulations on the Collective Management of Copyright.

This post reported the rulling of the case. And provided the brief of the case and the link at the Wikipedia.

In this essay, I introduced the guys never stand up and applause at Obama’s State of the Union Address. They are the millitary forces and the Justices of the Supreme Court. And narrated the news of Justice Alito’s murmur when Obama critisized the decision of Citizens United v. Federal Election Commission. In the end of essay, I wrote: the democracy without constitutionalism will easily turns to disturbance, and the constitutionalism without real judicial independence will easily be back to the dictatorship.

Edited by Luckie Hong, the following news are collected:
(1) In CAVCA’s 170 million income of royalties, 50% is counted as the cost;
(2) Ministry of Industry and Information Technology is drafting the regulation on the digital publication;
(3) A pleading of illicit compelition was filed to a Shanghai court by Tencent (QQ’s oporator);
(4) the “Cabernet” trademark case has entered into the court of second instance; this dispute has lasted for 8 years;
(5) The image of “Dragon Prince” in a popular cartoon was registered as a trademark; now the trademark owner and the copyright owner sue each other for infringement respectively;
(6) ChongQing promulgated the local regulations to encourge the bank loan with the pledge of the Trademark as a property;
(7) According to the stastics of the WIPO, Chinese applicants filed 7971 PCT application (30.1% annual increase, and the most rapid increase in the world), and Huawei ranks the 2nd applicant around the world;
(8) Shinco settled its patent dispute with MPEG LA;
(9) a 18 year old man sued Samsung for patent infringement.

In this post, I illustrated the concept of Public Domain (based my on research) and introduced the contents of the Public Domain Manifesto.

(1) Google and China Society of Literature Copyright continues negociate on the Goole Books;
(2) “Little Shenyang” (a famous comedian) was sued for the copyright infringement;
(3) Video websites signed the self-regulation announcement on the copyright protection;
(4) A Bejing court ruled that Baidu.com has the duty to examine whether or not the keywords solde for advertisements is used in an infringing way.
(5) The “Shaolin Corporation” attempted to be a listed company; this may trigger a new wave of trademark disputes on “Shaolin” between the Shaolin Temple and the corporation.
(6) “Weichai” involved into a trademark dispute:
(7) Implementing Regulations of the Patent Law has been revised; the regulations on compulsory licenses are improved;
(8) China color TV patent pool is formally oporated;
(9) In the new Implementing Regulations of the Patent Law, the application abroad shall firstly be examined by SIPO with the secrecy concern.

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